Can We Go Home Now?

Dan McLauglin decides to oppose Miers, and tells us why.

The Captain does a terrific job of rounding up some of today's breaking (and back-breaking) news on the Miers nomination.

Via Glenn and Orin Kerr, we see chicanery in the markets!  The "Miers to be confirmed" contract at TradeSports swooned from the mid-40s to the mid-20s before rallying back.

Finally, Patterico's position on the Miers nomination has evolved from fence-straddling through opposition and on to window-ledge sitting:

If you need me this morning, I’ll be out on the window ledge. Because it is becoming clearer and clearer that we are headed towards the confirmation of a Supreme Court justice who has no idea what the Constitution says.

My free advice - jump soon if you want to make an impact, or your fall will be cushioned by the many bodies that precede you.

Et moi?  I bailed out on Miers weeks ago, hung up on the cronyism question and vexed by the "If Hillary Did This, Would I Shoot Myself or Hang Myself" question.

Comments

[Freaknik]

Another ill considered Bush initiative.

Will Meirs be like Social Security reform or the invasion of Iraq?

[Plamaholic]

I don't understand how this fits into Plamegate?

[Terrye]

I think the attacks on Miers are both unfair and hypocritical..wasn't Patterico the one who made some claim about Miers not knowing what proportional representation was when in fact she did and her statements were correct in their context. I remember seeing something on powerline abou that.

But saying that one of the 100 best lawyers in the country does not know what the Constitution says is just so snarky and immature. Too bad she is not Ruth Ginsburg, we would not be hearing a peep out of these guys.

I guess all that stuff about the president deserving his nominee and the nominee deserving a vote only apply when NRO and George Will are on board..If that is how they feel why don't they run for office and pick their own nominee?

[Crank]

The nominee does deserve a vote if it comes to that, and she should be voted down. But prudence dictates pulling the nomination now to stanch the bleeding.

I would be screaming bloody murder if Bush nominated someone with Ginsburg's principles.

[Jim E.]

Uh oh. Patrick Sullivan should be along shortly to call TM a "pussy" for this post.

[Peggy]

The bloodletting began moments after Bush announced Miers' nomination by the NRO gang. They were lying in wait. The real 'stealth' event here was the (now) apparent stalking of a successful wartime president by 'elite' members of his own party. I don't think this kind of thing has been seen since Lincoln.

I also believe (after reading all the arguments they put out) that the antiMiers pundits are in a massive snit that this president hasn't consulted them as often as they believe he should have.

[Terry]

I think that pulling Miers now would be a mistake. If she pulls herself I would understand but the president was elected by 62 million people, not just a bunch of pissy pundits who seem to think he is supposed to jump when they say how high.

Bush was the first Republican I ever voted for but after seeing the temper tantrum thrown by some right wing pundits I am feeling a little disgusted with some of them right now. If they force him to withdraw this candidate because she is not one of their dream candidates I will have to wonder who is really calling the shots. And I don't much like George Will.

As for Ginsburg she got a 97 to 3 vote without people threatening to jump off ledges.

[BR]

Remember, Bush is a master poker player
Methinks he showed a weak card first
and when all arguers have quenched their thirst,
to then put forward one much stronger!

[Creepy Dude]

You're right BR. We are going to invade China!

[Crank]

Terry - Lemme explain this real slow. Ginsburg was nominated after a Democrat won the election. Republican Senators found her qualified (which is pretty much undisputed), and agreed that a liberal president gets to appoint liberal judges.

Of course, Republicans expect better when our guy wins and we also control the Senate. But if I was convinced that Miers was (a) competent for the job and (b) something like a reliable conservative, I'd be fine, if disappointed that better candidates were passed over. Instead, the evidence we have so far shows that the woman can't write, has little or no background in constitutional law, doesn't seem to have spent a lifetime litigating the more complex issues of statutory law either, and can't get through simple meetings and questionnaires without embarrassing gaffes. And that's before we get to her political profile or the "cronyism" issue.

Miers has had an impressive career and is well-qualified for a number of jobs. This just isn't one of them.

[TM]

Remember, Bush is a master poker player

Then he better play a quick round of Texas Fold 'Em.

[ed]

Hmmm.

1. "I think the attacks on Miers are both unfair and hypocritical".

In what way? Sure the President can appoint anyone he likes. That's in the Constitution. But I don't have to approve and I don't have to like it. And if that means I disapprove and speak out in public, how is that either unfair or hypocritical?

For 30+ years conservatives have been working to reform the court system, with the Supreme Court at the head of the list. Reforming of the courts was one of the top issues in the 2000 Presidential election. It was again one of the top issues in the 2004 Presidential Elections. During the past 5 years of unsupportable and non-stop wastrel spending by Bush, the argument for continuing to support Bush was based entirely upon the GWOT, Iraq and court reform.

So how is it "hypocritical" for conservatives to criticise the President for appointing Miers, who has nothing in her background to suggest that she is at all a conservative or a textualist?

How is it "hypocritical" for conservatives to expect an elected politician, elected primarily by support from conservatives, to conduct himself according to the openly established desires of his constituency?

2. "But saying that one of the 100 best lawyers in the country does not know what the Constitution says is just so snarky and immature."

In what universe is Miers "... one of the 100 best lawyers in the country"? I'm sure you've actually got proof of that assertion and you're not just pulling this out of your ass right? Right?

3. "I also believe (after reading all the arguments they put out) that the antiMiers pundits are in a massive snit that this president hasn't consulted them as often as they believe he should have."

Absurd. I don't expect Bush to consult with me on his Supreme Court nominations. But he has made promises to the conservative movement and the nomination of Miers is a backstab of monumental proportions. And no, nobody was "lying in wait".

If you can't see that Miers is completely and hopelessly unsuited for the Supreme Court, then I'm not going to waste my time.

4. "If they force him to withdraw this candidate because she is not one of their dream candidates I will have to wonder who is really calling the shots. And I don't much like George Will."

And the thought of a status quo ante is appalling to me. Tell me, are you in favor of the previous Supreme Court? The one where Rehnquist and O'Connor were in? Because that's *exactly* what we are getting in Roberts and Miers.

I'll accept, for the moment, that Roberts is a conservative. But there is no way that Miers is. I don't know many conservatives that are absolute supporters of affirmative action and diversity. Yet Miers is, and always has been, a supporter of both.

So what would be the result? Roberts replaces Rehnquist. Miers replaces O'Connor. And we get another Supreme Court no different from the last one. For the next 30 years Miers will be the oddball crackpot swing vote, just like O'Connor has been.

So. You'd like that would you?

5. "Remember, Bush is a master poker player
Methinks he showed a weak card first and when all arguers have quenched their thirst, to then put forward one much stronger!"

And a lot of very good card players will occasionally lose their shirt. When you're having a streak of bad luck, the worst thing is to double your bets.

...

Frankly I almost wish Miers would be confirmed. That way all of you that want Miers in the Supreme Court will get exactly what you deserve. But that'll include me and that amount of schadenfreude isn't worth it.

[Cecil Turner]

Well, first I'd better lay out my own legal qualifications . . . er, um. Okay, but it still looks to me like the eggheads are wrong on this one.

Patterico quotes Sunstein and suggests Miers is out to lunch:

He and several other scholars said it appeared that Miers was confusing proportional representation — which typically deals with ethnic groups having members on elected bodies — with the one-man, one-vote Supreme Court ruling that requires, for example, legislative districts to have equal populations.

Powerline defends Miers, saying she is just using the term loosely:

All Miers meant was that the City Council, in trying to draw districts in compliance with the Voting Rights Act, had to take into account the one-man-one-vote rule that has been held to be mandated by the Equal Protection Clause. In other words, the districts had to be of roughly equal size so that each voter's ballot counted about the same.

Okay, maybe so. But I'd note that a lot of those redistricting cases quote Thornburg v. Gingles, 478 U.S. 30 (1986), and its three-part test, or “Gingles factors” for demonstrating minority vote dilution: "(1) compactness; (2) cohesive minority voting; and (3) a bloc voting majority that can usually defeat the minority-preferred candidate." Reading through Gingles, it appears to be nothing but an exercise in proportional representation. In the first place, proportional representation was one test of whether a minority bloc is being properly represented:

Consistent and sustained success by candidates preferred by minority voters is presumptively inconsistent with the existence of a 2 violation.

Further, the main issue was the proportion of minority voters in any particular district, a fact noted by O'Connor:

There is an inherent tension between what Congress wished to do and what it wished to avoid, because any theory of vote dilution must necessarily rely to some extent on a measure of minority voting strength that makes some reference to the proportion between the minority group and the electorate at large. [emphasis added]

Finally, the test as approved provides a de facto entitlement to proportional representation (O'Connor):

Third, although the Court does not acknowledge it expressly, the combination of the Court's definition of minority voting strength and its test for vote dilution results in the creation of a right to a form of proportional representation in favor of all geographically and politically cohesive minority groups that are large enough to constitute majorities if concentrated within one or more single-member districts.

I read it the same way Miers apparently does.

[kim]

Mount that Broke Back.
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